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  Expert Witness Immunity - Supreme Court Experts?

The consequences of the decidedly disturbing decision-making in Jones -v- Kaney should put a number of issues right at the top of an expert witness's to-do list

The decision of the Supreme Court in Jones -v- Kaney [2011] UKSC 13 was split, with a majority of five judges favouring the removal of expert witness immunity to civil suit from those who instruct them and two judges dissenting[1].

For many expert witnesses, the decision will make little immediate difference. Most expert witnesses, being conscientious professionals, will feel themselves unlikely to be found negligent and will carry professional indemnity insurance just in case. Indeed, they will view existing professional disciplinary risks as a greater concern! But there are a number of potential consequences of this disturbing decision that should be considered by all expert witnesses and some clear actions that may be necessary.

Consequences

The majority in the Supreme Court is dismissive of the risk that their decision will have a ‘chilling effect’ on the supply of willing experts. But opening expert witnesses to the potential distractions of vexatious suits from disgruntled litigants is never likely to encourage involvement in forensic work. It is the unquantifiable nature of this risk that so concerned Lord Hope and Lady Hale, as it should trouble anyone interested in the proper administration of justice.

A chill wind

For all the effort put into drawing an analogy between expert witnesses and advocates, the majority in the Supreme Court completely ignored the fundamental difference between these two players. Experts have busy professional lives away from the legal system and can readily choose not to take on forensic work, but advocates have no such easy choice.

Accepting the analogous position of advocates and expert witnesses led the majority to draw incorrect conclusions from the removal of immunity for advocates. For example, ‘The danger of undesirable multiplicity of proceedings has been belied by the practical experience of the removal of immunity for barristers.85 That’s not a safe conclusion. The inhibition against a disgruntled litigant suing his lawyer (a man quite at home in the law) is entirely different in force and nature from when it is an expert who is the potential target.

Expert and advocate also have different duties. As Lord Hope says, ‘The duties that the advocate owes to the court are not as far reaching as the overriding duty to the court that rests on the expert.162 The advocate is paid to be a partisan player who has to put as strong a case as he can for his client. The expert witness is most definitely not that!

In short, a legally trained advocate faced with the removal of immunity has always been much less likely to leave legal practice, or be put off by the threat of being sued, than will be, say, a surveyor or a paediatrician to abandon forensic work.

We shall have to wait and see if this ‘experimental’ decision is as benign on the supply of expert witnesses as their lordships suppose. But the supply issue is not the only concern.

Professional class of expert witness

Another unfortunate consequence of this decision lies in the impetus it gives to the further development of a professional class of expert witness. With a few notable exceptions, such as forensic science and forensic accountancy, the vast majority of expert witnesses come to court from a busy professional practice. By restricting the scope for an expert to offer just occasional assistance to the court, the decision will concentrate instructions upon those experts who have made a commercial choice to build a forensic practice. This is a double-edged sword. Whilst the greater understanding of their role and duties should ensure the ‘professional’ expert witness will create fewer procedural problems, by excluding the occasional expert witness the freshness and challenge to dogma that comes with diversity is lost.

Slippery slope

The majority set the issue before them in the context of what to do with a negligent expert witness. In my opinion, this is a myopic view of witness immunity. In putting a single expert witness centre stage, it strongly encourages the creation of a remedy for a wrong done. But witness immunity has never been about protecting the negligent but about protecting the public. In focusing so intently on what to do about the rare example of an expert witness who has been negligent, the Supreme Court has handed down a decision that threatens the very foundation of broader witness immunity.

There have always been exceptions to the immunity rule: perjury and contempt have a long lineage; wasted costs orders and professional disciplinary actions are recent additions. As Lady Hale pointed out, these exceptions are there to oblige the witness to perform his duty to the court. But the Supreme Court decision is a radical departure from these existing exceptions – it has been made to protect the interests of the client. To do this on no ‘secure principled basis173 is all the more disturbing.

Decidedly Disturbing Decision

The decision is disturbing for the lack of challenge from the majority of the views expressed by the minority, and for having the President and his Deputy split over the issue. But the way in which the majority arrived at its decision is the most troubling aspect of all.

As Lord Hope puts it, this is a decision that lacks ‘a secure principled basis for removing the immunity from expert witnesses’. 173 So what has led the court to behave in this way? One element may be the rather anachronistic view of expert witness practice revealed by the President of the Supreme Court, and another may be the conflation of duties.

Anachronistic view of expert practice

Lord Phillips’ judgment is notable for his pre-Woolf characterisation of the conduct of expert witnesses. For example, when he says ‘… an expert’s initial advice is likely to be for the benefit of his client alone56, he is not describing an expert witness, but an expert advisor (who has never had the protection of witness immunity). No expert witness instructed under CPR 35 could ever write a report that was ‘for the benefit of his client alone’. It feels as if Lord Phillips thinks the world of the hired gun is alive and well 10 years after Lord Woolf rode them out of town. Does a decade or more in the rarefied air at the very top of the judicial ladder put one out of touch with the reality on the ground?

Conflation of duties

Much is made in the Supreme Court judgment of the duty an expert witness owes the court, the duty he owes those who instruct him and how these are incapable of being in conflict. Surely the fact that the CPR places an ‘overriding’ duty on the expert witness implies that on occasion these duties will conflict, and the duty to the client is therefore subordinate.

Lord Phillips says ‘It is paradoxical to postulate that in order to persuade an expert to perform the duty that he has undertaken to his client it is necessary to give him immunity from liability for breach of that duty.’ But it is the conflation of the expert’s duty to the court with his duty to the solicitor’s client that creates the paradox. By recognising that these duties can conflict, then the value of the immunity is clearer.

Lord Hope is firm in his opinion that there is ‘an obvious conflict between the duties that the expert owes to his client and those that, in the public interest, he owes to the court.156 This is because ‘when it comes to the content of that evidence his overriding duty is to the court, not to the party for whom he appears. His duty is to give his own unbiased opinion on matters within his expertise.

Naturally enough, if you convince yourself that an expert witness is incapable of being presented with a situation in which his duty to the court can conflict with his duty to others, then you will see little benefit in an immunity that facilitates his dealing with that situation in a frank and fearless manner.

But, regardless of how the decision was made, what its consequences may be and whether it is a correct decision, a number of issues should now be written at the top of an expert witness’s list of things to contemplate. These include the need to get comprehensive professional indemnity insurance in place, to recognise the need for caution in giving initial opinions and to think carefully about acting as an SJE.

What’s an expert to do?

Professional indemnity insurance

First, and most importantly, expert witnesses should obtain appropriate professional indemnity insurance, or check with their existing professional indemnity insurer to see if it can provide cover that extends to forensic work. There are already some schemes being targeted specifically at expert witnesses, and more will be coming along soon.

However, one thing of which to be aware, is the fact that a court decision sets out what the relevant law is and was. So experts should check that their professional indemnity insurer will cover this retrospective risk.

Limiting liability by contract

Lord Collins said that uninsured expert witnesses could ‘limit their liability by contract.81 The notion that an expert witness can successfully limit liability through contract is an odd one for a Supreme Court judge to suggest. Court reports are littered with examples of failed attempts to achieve such limitation. Experts can by all means try it, especially, perhaps, if there is a lack of willing experts in the field (the family court springs to mind), but it would be unwise to rely on it in the absence of professional indemnity insurance.

Circumspection

Immunity made it easier for an expert to resile from an earlier held position. Without the protection of immunity, expert witnesses may well become more circumspect in their opinions.

Expert witnesses should ensure that they give accurate opinions at all stages of proceedings, and that their earlier opinions are consistent with their later ones. So in this respect the impact of the removal of immunity should be for the good. But expert witnesses will need to be strong in their determination to give only those opinions that are based absolutely on the evidence they have been asked to consider. If a change of opinion is justified by a change in the evidence, there will be precious little for anyone to complain about. But if there are any other reasons for changing one’s mind, the expert will come under far greater scrutiny.

Whither the SJE

According to the decision, the removal of immunity applies only to claims from those who have instructed the expert witness. So, what of the Single Joint Expert (SJE)? The notion that this role opens an SJE to suit from all parties may cause a moment’s reflection in future! And the position of the court-appointed expert witness is far from clear. However, because this type of appointment is rare, it is of little practical concern.

Conclusion

Having worked with the Law Commission on their careful deliberations on the admissibility of expert evidence in criminal proceedings, we are perhaps predisposed to see value in that body’s approach to tackling difficult questions. If this unprincipled decision from the Supreme Court does, in practice, result in a serious chilling effect on the availability of expert witnesses, we may end up in another decade with the Law Commission looking at how to change the law to encourage a ready supply of expert witnesses back into court. How much better if we had instead asked the Law Commission today how best to provide a remedy for the rare wrong perpetrated by a negligent expert witness.


[1] See http://www.jspubs.com/Experts/cr/detail.cfm?id=24 for our court report on this appeal

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Issue 69
May 2011

Expert Witness Immunity - Supreme Court Experts?
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Session on expert witness immunity


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